Category: Medical Benefits

Hawes v. Aviva General Insurance Company (20-009483)

The insurer challenged the hourly rates claimed in one of the claimant’s treatment plans. The claimant submitted a psychological treatment plan, which sought entitlement to psychological treatment at an hourly rate of $149.61 per hour. The psychological treatment plan was to be provided by a registered psychotherapist. The insurer partially approved the treatment plan at a rate of $100.00 per hour. Adjudicator Norris held that claimant was not entitled to the higher hourly rate of $149.61 per hour. The Professional Services Guideline is silent as to the maximum hourly rate of a psychotherapist. Relying on the LAT’s decision in Baranov v. Aviva General Insurance, Adjudicator Norris held that the claimant did not met her onus to demonstrate that she is entitled to an enhanced hourly rate for psychotherapy services. Similar to this case, the LAT awarded a rate of $99.75 in Baranov for counselling, mental health and addictions treatment by a psychotherapist. Adjudicator Norris found that the claimant failed to provide relevant information to justify paying a higher rate, such as reference to the provision of cognitive behavioural therapy or other specialized psychotherapy treatment.

Crecoukias v. Toronto Transit Commission (19-014590)

The claimant witnessed an individual being struck and killed by a bus. He applied to the LAT for a catastrophic impairment designation, and disputing entitlement to ACBs and various medical benefits. The insurer argued that the claimant’s severe psychological impairments were the result of pre-existing schizophrenia that was already worsening prior to the accident. Adjudicator Neilson agreed with the insurer. Although she accepted that the claimant suffered a psychological injury from witnessing the incident, she found that the schizophrenia and severe psychological impairments demonstrated by the claimant were not a result of the accident, and that it would have developed regardless. The claimant showed a prodromal stage of schizophrenia from a young age, and he was at high risk from developing schizophrenia due to drug use and family history of psychosis. The evidence of the claimant’s mother was rejected as being non-credible as it was contradicted by the medical records of the claimant’s treating psychiatric team. Adjudicator Neilson also noted that she rejected the opinion of the claimant’s catastrophic impairment experts, as it was a chiropractor that provided the AMA ratings following assessment and diagnosis by a psychiatrist. Even using the opinion of the claimant’s psychiatrist, Adjudicator Neilson found that the claimant failed to prove that he suffered a Class 4 marked impairment or Class 5 extreme impairment in any of the four spheres of function as a result of the accident. Adjudicator Neilson did not need to address the claims for ACBs or medical benefits as the claimant had exhausted his medical benefits limits. However, in the event she was overturned with regard to the catastrophic impairment decision, she would have held that the unpaid ACBs related to transportation for the service provider, which was not payable under the SABS. She also found the claimed transportation to be inconsistent with the claimant’s ability to drive himself. Adjudicator Neilson also would have rejected the denied rehabilitation support worker services, as they were duplicative of services the claimant was already receiving at CAMH. Finally, Adjudicator Neilson would have rejected the claims related to the hotel stays, because they were claimed as medical benefits and incurred without a treatment plan. There were also procedural matters addressed at the outset of the hearing. Adjudicator Neilson allowed the insurer’s IE psychiatrist to observe the testimony of the claimant’s psychiatric expert; she allowed a defence medical report completed in the tort matter to be admitted as the insurer had access to the report and it had been provided to other expert witnesses; she allowed the insurer’s IE psychiatrist to testify to matters not contained in the report, while giving the claimant’s expert an opportunity to respond by way of reply evidence; and she restricted the claimant’s catastrophic impairment chiropractor to limiting his testimony to matters pertaining to the spine and musculoskeletal system only.

Galang v. Coseco Insurance Company (20-008382)

The claimant was injured in an accident on April 30, 2018. She sought entitlement to various treatment plans, including a chiropractic treatment plan submitted on May 15, 2018, and a physiotherapy treatment plan submitted on July 19, 2018. The insurer denied the claimant’s chiropractor treatment plan and partially approved the physiotherapy plan. The claimant was removed from the MIG on August 24, 2018. Adjudicator Deol held that the claimant was not entitled to the denied chiropractic treatment plan as it was properly denied under s. 38(5) of the Schedule, as the insurer was entitled to refuse a non-MIG treatment plan while the claimant was still within the MIG. In rejecting the claimant’s treatment plan for chiropractor treatment, the insurer clearly advised the claimant that their OCF-18 was being denied pursuant to ss. 38(5) and 38(6). However, Adjudicator Deol held that the insurer’s denial of the claimant’s physiotherapy treatment plan was not valid pursuant to s. 38(5). The insurer did not “refuse to accept” the disputed OCF-18, as it partially approved the OCF-18 and the denial letter did not reference ss. 38(5) and 38(6).

H.Y.Z. v. Allstate Canada (18-003942)

The insurer initially accepted that the claimant sustained a catastrophic impairment, but reversed its decision upon receipt of ODSP records detailing similar pre-accident impairments. The claimant argued that the treatment plans submitted during the period while she had access to the catastrophic impairment limits ought to be payable. The insurer argued that because the claimant did not truly suffer a catastrophic impairment, she was not entitled to any medical benefits in excess of the standard limits. Vice Chair Lester held that the claimant was entitled to seek medical benefits in excess of the standard limits for the time period the insurer had advised that she was catastrophically impaired. Vice Chair Lester considered each claimed medical benefit under the reasonable and necessary standard, and awarded the treatment plans for psychological treatment (aside from transportation costs). Further physical therapy was mostly denied as there was no evidence to suggest that the claimant received any benefit from the treatment. No submissions were made regarding occupational therapy or an attendant care assessment. Those claims were also denied.

Vespa v. Aviva General Insurance Company (2022 ONSC 3283)

The claimant appealed the Tribunal’s denial of a chiropractic treatment plan, arguing that the adjudicator’s failure to refer to a specific medicolegal report suggested the lack of procedural fairness or denial of natural justice. The Divisional Court dismissed the appeal. The Court concluded that the Tribunal’s reasons demonstrated that the initial decision and reconsideration decision were fair. The reasons demonstrated that the Tribunal had engaged with the claimant’s argument and explained why the Tribunal disagreed with the claimant’s position. The Court explained that an adjudicator is not required to refer to every piece of evidence before him or her; procedural fairness does not require that every argument be the subject of a line of analysis or that every aspect of the evidence be commented upon.

Ramnarine v. Aviva General Insurance (20-007108)

The claimant sought catastrophic impairment designation under Criterion 8 (marked impairment in Activities of Daily Living, Social Functioning, and Adaptation), as well as entitlement to Non Earner Benefits and various medical benefits. The claimant had a significant pre-accident medical history for chronic pain, Somatic Symptom Disorder, and Major Depressive Disorder. Adjudicator Hines found that the accident was not a necessary cause of the claimant’s physical and psychological impairments, nor did it result in the functional limitations which formed the basis for the claimant’s application for a CAT determination. Notably, psychological status reports prepared both shortly prior to and shortly after the accident noted very similar impairments and limitations. Given that “not much had changed post-accident”, Adjudicator Hines found that the claimant had not sustained a CAT impairment as a result of the accident, nor was he entitled to NEBs. Adjudicator Hines went on to find that a chronic pain program was reasonable and necessary as there was some exacerbation of his pre-existing chronic pain as a result of the accident. She also found an occupational therapy assessment to be reasonable and necessary to investigate the degree that the claimant required attendant care, if any, as a result of his accident-related impairments.

Singh v. Aviva Insurance Company (20-008014)

In this LAT dispute, the insurer challenged the length and hourly rates claimed in one of the claimant’s treatment plans. The claimant was seeking $1,466.25 in remaining amounts for psychological treatment. The plan consisted of twelve one and a half hour sessions at the hourly rate of $224.42. Dr. Harris’ psychological report, which formed the basis of the disputed OCF-18 form, had recommended that the claimant receive twelve sessions but had not specified their length. The insurer argued that the claimant should only be entitled to twelve one-hour sessions, which were limited to the hourly rate of $149.61 pursuant to the FSCO Professional Services Guideline. Adjudicator Deol agreed that treatment fees should not exceed the FSCO limits and upheld the denial of the remaining treatment balance.

Bernard v. Unica Insurance Inc. (20-007082)

The claimant sought catastrophic impairment designation, as well as entitlement to non earner benefits, attendant care benefits, and housekeeping benefits. The claimant, who had a pre-existing history of ADHD and Asperger’s syndrome, suffered a comminuted fracture of his left tibia/fibula when he was struck by a car while riding his bicycle. The claimant underwent two surgeries, and suffered from ongoing pain and functional impairment. The parties agreed that from a physical perspective, the claimant’s injuries were significant, permanent impairments. The insurer’s IE assessors concluded that the claimant suffered a 44% WPI. The parties disagreed as to whether the claimant suffered impairments from a psychological perspective that met the criteria for a 55% WPI. Based on the 44% WPI, the claimant would require a further 19% WPI in order to meet the threshold established in the Combined Values Chart. Adjudicator Grant found that the evidence fell short of meeting the requirements to establish same. Notably, the family doctor records were largely silent with any notations that would support complaints or recommendations for psychological-based treatment or medication. Adjudicator Grant accepted that the claimant had established entitlement to NEBs, as his physical injuries significantly limited his ability to engage in almost all aspects of his activities of daily living. Adjudicator Grant found that attendant care services were not reasonable and necessary, and that the claimant was not entitled to housekeeping benefits as he was not found CAT.

Padua v. Co-operators General Insurance Company (20-005450)

The claimant brought a LAT application after various treatment plans were denied because her injuries were deemed to fall under the MIG. She also sought a special award for unreasonably withheld or delayed payments. Several months after the accident in April 2018, the claimant had voluntarily withdrawn from receiving treatment without exhausting her MIG benefits. She did not seek further treatment until January 2020. The claimant had not referenced any psychological injuries to her treatment providers following the accident. Owing to the lapse of a year and a half in which no treatment was sought, combined with the absence of any psychological complaints related to the accident prior to January 2020, the insurer denied approval of the assessment and did not conduct a psychological IE. Adjudicator Norris ruled that the claimant was entitled to a special award in the amount of $1,612.79. He found that the insurer had acted unreasonably in rejecting the conclusions of Dr. Brunshaw’s psychological assessment dated April 22, 2020, which stated that the claimant had suffered psychological injuries from the accident and required treatment. At the hearing, the claimant acknowledged that she had denied experiencing pre-accident psychological issues in her assessment, despite her family doctor’s notes indicating otherwise. However, Adjudicator Norris noted that the insurer had not produced any independent medical opinions following receipt of the claimant’s psychological report, leaving its conclusion, which included causation of the alleged injuries, uncontested. He opined that psychological injuries could develop over time and that the year and a half gap did not disqualify the claimant from receiving further treatment. She was deemed to be entitled to 50% of the amounts withheld but was awarded 30% to account for a failure to disclose pre-existing psychological issues during her psychological assessment.

G.P. v. Wawanesa Mutual Insurance Company (18-010583)

The claimant applied to the LAT for a catastrophic impairment designation, post-104 week IRBs, the cost of CAT assessments, and various medical benefits. Vice Chair Lester found that the claimant suffered a catastrophic impairment due to Class 4 Marked Impairments in both adaptation, and concentration, persistence, and pace. The claimant suffered from chronic pain as a result of a minor accident, which deteriorated into somatic symptom disorder with predominant pain and major depressive disorder. The claimant suffered from panic attacks once to twice per week. She was unable to deal with stressful circumstances, had not returned to work as a PSW, and became emotional and overwhelmed by minor things. The claimant was also found to meet the post-104 week IRB test. The only jobs the claimant was suited for were PSW work and an office manager role. The insurer did not have any IEs addressing post-104 week IRBs because it had terminated IRBs within the first 104 weeks. Notably, the insurer’s CAT assessments noted Class 3 Moderate Impairments in social functioning, which was relevant for the claimant’s ability to communicate effectively and ability to get along with others, and found a Class 3 Moderate Impairment in concentration, persistence, and pace, which was relevant to the claimant’s ability to sustain focused attention in a work setting. All of these conclusions supported the determination that the claimant suffered a complete inability to engage in work for which she was suited. The $26,971.50 for CAT assessments, $13,566.81 for a chronic pain program, $2,200 for a chronic pain assessment, and $1,808 for an FAE were awarded due to the insurer’s failure to comply with section 38(8). The denials did not provide adequate medical reasons for the denial, and referred the claimant to read other documents. Vice Chair Lester was critical of the insurer’s reason that something was “excessive” without providing any detail. Finally, Vice Chair Lester granted a special award of 30 percent on the awarded IRBs and treatment plans based on the insurer’s decision to “blindly follow” the IE assessor opinions without considering other evidence. The claimant suffered financial hardships as a result of the denials, including the need to apply for OW, borrow money from her family, and cut back on her diet.